King v GIO Australia Holdings Ltd [2001] FCA 270

King v GIO Australia Holdings Ltd [2001] FCA 270

The notice approved by the primary judge was capable of misleading group members by implying that Maurice Blackburn Cashman would represent them for all aspects of the proceedings even though, unless proceedings are settled, individual group members must engage lawyers and enter into fee agreements to prove their loss or damage. The notice must clearly state these consequences so group members can make informed decisions about opting out.

Parties
Applicant: Shane Robert King; First Respondent: GIO Australia Holdings Ltd; Second Respondent: Grant Samuel & Associates Pty Limited; Third Respondent: David Mortimer; Fourth Respondent: Bruce Hogan; Fifth Respondent: Stewart Steffey; Sixth Respondent: Ronald Ashton; Seventh Respondent: Marina Darling; Eighth Respondent: Andrew Kaldor; Ninth Respondent: Lloyd Lange; Tenth Respondent: David O'Halloran; Eleventh Respondent: Ian Pollard
Jurisdiction
Australia
Judgment Date
23 March 2001
Procedural Posture
Representative Appeal / Appeal From a Judge of the Federal Court of Australia
Outcome
leave to appeal granted; appeal allowed
Legal Topics
Representative Proceedings, Opt Out Notices, Costs Consequences, Group Member Representation
Practice and Procedure Class Actions Representative Proceedings Opt Out Notices Costs Consequences Group Member Representation

Case Brief

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Parties

Shane Robert King

Applicant

GIO Australia Holdings Ltd

First Respondent

Grant Samuel & Associates Pty Limited

Second Respondent

David Mortimer

Third Respondent

Bruce Hogan

Fourth Respondent

Stewart Steffey

Fifth Respondent

Ronald Ashton

Sixth Respondent

Marina Darling

Seventh Respondent

Andrew Kaldor

Eighth Respondent

Lloyd Lange

Ninth Respondent

David O'Halloran

Tenth Respondent

Ian Pollard

Eleventh Respondent

Procedural Posture

Representative Appeal / Appeal From a Judge of the Federal Court of Australia

Legal Issues

  1. 1 Whether the form of opt-out notice in a representative proceeding is misleading by implying group members are represented by the applicant's solicitors for all aspects of the proceedings
  2. 2 Whether the notice should refer to costs consequences for group members not opting out
  3. 3 Whether the notice should explain the necessity for group members to prove individual reliance and loss

Ratio Decidendi

The notice approved by the primary judge was capable of misleading group members by implying that Maurice Blackburn Cashman would represent them for all aspects of the proceedings even though, unless proceedings are settled, individual group members must engage lawyers and enter into fee agreements to prove their loss or damage. The notice must clearly state these consequences so group members can make informed decisions about opting out.

Court Disposition

leave to appeal granted; appeal allowed

Orders

  • Leave granted to appeal from Order 2 made on 20 December 2000 approving notice form
  • Appeal allowed